Girdhari vs State Of U.P.
2014 Latest Caselaw 824 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
Criminal Appeal No. 502 of 1999
 
Girdhari Versus  State of U.P.
 
Hon'ble Ravindra Singh,J.

Hon'ble Arvind Kumar Tripathi,J.

Heard Sri Lal Ji Chaudhari, Amicus Curiae, on behalf of the appellant and the learned A.G.A. for the State of U.P.

This appeal has been preferred by the appellant Girdhari son of Laldeen Kacchi against the judgement and order dated 22.2.1999 passed by the learned Sessions Judge, Mahoba in S.T. No. 122 of 1999 whereby the appellant has been convicted under section 302 I.P.C. and sentenced to undergo imprisonment for life with a prayer that the impugned judgement and order dated 22.2.1999 convicting the appellant may be set aside and the appellant may be acquitted.

The facts, in brief, of this case are that the F.I.R. has been lodged by Mukund Madhav Singh (P.W. 1 )at P.S. Charkhari on 30.1.1998 at 10.45 a.m. in respect of the incident allegedly occurred on 30.1.1998 at about 7.30 a.m. According to the F.I.R. the deceased Gulab @ Shiv was daily wage worker of the first informant, Mukund Madhav Pradhan, P.W. 1, as usual on 30.1.1998, was returning after easing from Shamshan Maidan (cremation ground), when he reached near the field of Sarvan at about 7.30 a.m. he was assaulted by the appellant by using Pharsa blow on which he cried and fell down, again he was assaulted by the appellant by using pharsa blow, the first informant, P.W. 1 and Kamlesh P.W. 2 who were also easing there, shouted and ran towards the place of incident to save the life of the deceased, then the appellant escaped towards the village, the deceased was lying on the spot, the deceased was allegedly killed by the appellant because one day prior the incident i.e. on 29.1.1998 the sister of the appellant was taking out the greenery(green fodder) from the field of P.W. 1, the servant of P.W. 1 asked not to take out any greenery, some altercation has taken place between his servant and the appellant Girdhari, on account of this dispute the appellant Girdhari killed the deceased whose dead body was lying on the spot.

After lodging the F.I.R. the investigation of this case was initiated, the I.O. came to the place of incident, prepared inquest report, thereafter, the dead body was sent to mortuary for conducting the post mortem examination. The post mortem examination was conducted by Dr. D.K. Tripathi, P.W. 6 on 31.1.1998 at 2.30 p.m., according to the post mortem examination report the deceased has sustained following ante mortem injuries.

(1)I.W. 15 cm.x 2,1/2 cm. x bone deep over left side of zygomatico temporal region on 03 cm. lateral to left orbital(upper and lateral) Margin transversely placed 04 cm. above left tragus of ear margin clean cut tailing toward. Posteriorly menthgies and cerebral cortex cut.

(2)I.W. 12 cm. x 03 cm x muscle and bone deep over left side of neck 03 cm. lateral to thyroid cartilage left side great vessel's and spinal cord cut between 3rd and 4th cervical vertebra. Margin clean cut tailing towards posteriorly.

(3)I.W. 10 cm. 02,1/2 cm. left side of root of neck 04,1/2 c.m. below injury No. third transversely placed muscle deep margin clean cut tailing posteriorly.

(4)I.W. 05 cm.x 03 cm. x bone deep over upper and posteriorly left shoulder 01 cm. behind left acrimio clavicular joint superior border of scapula left cut transversely placed tailing to left lateral side. Margin clean cut.

The post mortem examination report and deposition of P.W. 6 Dr. D.K. Tripathi reveals that there was cut between 3rd and 4th Cervical Vertebra, stomach of the deceased was empty, small intestine and large intestine were having gases and faecal matters, the cause of death was due to shock and haemorrhage, due to ante mortem injuries, the condition of the dead body as regards Muscularity, Stoutness, emaciation, Rigor mortis and decomposition was of young male of average body build, musculature. Rigor mortis present over both upper and both lower limbs, no sign of decomposition was present. The blood stained earth, clothes of the deceased and a pair of Hawai Chappals and Pharsa were sent to Public Analyst. The report of Public Analyst dated 1.8.1998 shows that item nos. 1 to 8 were having blood stained, item no. 4 and 6 namely Baniyan and Tahmed were having the sign of blood stain in a big area. Item nos. 1 to 6 were having human blood, the blood present on item nos. 7 and 8 namely Hawai Chappals and Pharsa were disintegrated. The blood present on item nos.1,4,5 and 6 was 'B' group but no definite conclusion could be drawn about the group of blood found on item nos. 2 and 3. The I.O. prepared the spot inspection note, the same was marked as Exhibit Ka-2. The pharsa used in the commission of the alleged offence was recovered at the pointing out of the appellant, from the field of Alsi and Lahi belonging to one Laxmi Yadav, it was also having the blood stain, its recovery memo was prepared on 2.2.1998, which was signed by the witness, which has been proved and marked as Exhibit Ka-10, site plan of recovery of weapon Pharsa was also prepared by the I.O. on 2.2.1998, the same has been proved and marked as exhibit Ka-5. After completing the investigation, the I.O. submitted the charge sheet dated 12.2.1998 for the offence punishable under section 302 I.P.C. in the court of learned C.J.M. Mahoba, the charge sheet was submitted under section 302 I.P.C. against the appellant Girdhari, on which cognizance was taken by the learned C.J.M. Mahoba on 26.2.1998, thereafter, the case was committed to the court of Sessions. The learned Sessions Judge, Mahoba framed the charge of the commission of the offence punishable under section 302 I.P.C. against the appellant on 5.5.1998, the charge was read over and explained to the appellant who denied the charge and claimed to be tried.

From the side of the prosecution P.W. 1 Mukund Madhav Singh, P.W. 2, Kamlesh Kumar P.W. 3 Ajai Pal, P.W. 4 S.I. Nasiruddin, P.W. 5 H/C. Mani Ram Singh, P.W. 6 Dr. D.K. Tripathi, and P.W. 7 S.I. R.C. Verma, were examined, thereafter, the statement of the accused appellant under section 313 Cr.P.C. was recorded. The accused respondent did not produce any witness in defence, after evaluating the evidence available on record, the trial court recorded the finding of conviction against the appellant by convicting him for the offence punishable under section 302 I.P.C. and sentencing to undergo life imprisonment vide judgement and order dated 22.9.1999 in S.T. No. 122 of 1998.

The appellant, being aggrieved from the judgement and order dated 22.2.1999 preferred the present appeal with a prayer to set aside the impugned judgement and order dated 22.2.1999 and to acquit the appellant from the charge of the offence punishable under section 302 I.P.C. The appellant is in jail since 2.2.1998.

For the purpose of evaluating the evidence, the discussion of the deposition of witness in the following manner is required; the P.W.1 Mukund Madhav Singh who had lodged the FIR at police station Charkhari district Mahoba, deposed in his examination in chief recorded on 26.10.1998 that he was knowing the deceased who was resident of his village, the deceased Gulab Singh alias Shiva was serving at his house, he was killed about 8- 9 months back at about 7.30 a.m., when he was returning after easing, near the field of Serman Gareriya, the appellant Girdhari Kachhi armed with pharsa came and by causing the injuries by using pharsa blows committed the murder of Shiva. He and Kamlesh (P.W.2) who were attending the call of nature at cremation place witnessed the incident, he shouted and ran towards the place of incident, but the appellant ran away towards the village. One day prior to the alleged incident, the sister of the appellant had taken out green fodder along with crop from his field, the deceased was grazing the animals there, the deceased objected, on which some altercation had taken place between the appellant and the deceased, on account of this enmity the appellant committed murder of the deceased, he scribed the report, it was in his hand writing and signature. He went to the Police Station along with written report, on which his case was registered by the Head Constable, which was marked as Exhibit Ka-1. In cross examination he deposed that after commission of the offence, he came to his house and called some persons then went to the police station to lodge the FIR, it took about 3- 3¼ hours, he called the village Chaukidar, former Village Pradhan and family members. The place of incident was shown to them thereafter he along with Kamlesh went to the police station to lodge the FIR.

Being a Village Pradhan, the place of incident was shown by him to all persons. Such incident was never occurred in his village, After lodging the FIR, the I.O. came to the place of occurrence made spot inspection, he did the interrogation with the persons present there. The tractor was arranged, the dead body of the deceased was sent to Mahoba but not via P.S. Carkhari. The I.O. had done some written work at the place of the occurrence, he got scribed by him on a paper brought from the village, the same was taken by the I.O. to the police station, the dead body was sent to Mahoba after his dispatcher. The parents of the deceased had already died, his family was residing in Ram Nagar who were called, they were seen by him in crowed, he went to Police Station, he scribe a report at saying of Darogaji, its copy was provided to him. The proceedings of inquest was completed at the place of occurrence in his presence its was signed by the witnesses. He went to Mahoba Hospital along with the dead body from the police station. The dead body and some documents were brought by two constables, on next day, the post mortem examination was done. The fact that the green fodder was taken out by the sister of the appellant was not disclosed in the FIR, the sister of the appellant was not scolded, and only green fodder was taken back from her. There had been a Panchayat in the village in this regard and he denied the suggestion that the deceased was found guilty in Panchayat and he was scolded by him. The deceased was working for about two years back at his house. He was lodging and eating at his house. He was residing in a separate room. He saw the accused who caused the injuries on the person of the deceased by using Pharsa blows. After sustaining the first blow of the pharsa, the deceased fell down, thereafter, the second and 3rd blows of pharsa were used by the accused. He denied the suggestion that the appellant Girdhari had openly opposed him in the election of Pradhan and that is why he was falsely implicated and denied the suggestion that he had not witnessed the alleged incident.

Kamlesh Kumar P.W.2 deposed in examination in chief recorded on 8.12.1998 that at about 7.30 A.M., the deceased Gulab, who was servant of Village Pradhan Mukund Madhav Singh, was killed at about 7.30 A.M. about 10 months back. The deceased Gulab had gone to Shamshan ghat for easing purpose, after easing, he was returning and came near the field of Serman where the accused Girdhari assaulted him by using Pharsa blow, after sustaining the pharsa blow, he fell down, thereafter the appellant Girdhari used the pharsa blow on his person causing injuries, on shouting made by the deceased, he and Mukund Madhav Singh, P.W.1 came at the place of incident in a running condition, then the appellant Girdhari having a pharsa escaped towards the village, the deceased Gulab had died on the spot. One day prior to the alleged incident, there had been a dispute of the deceased with the sister of the appellant Girdhari, the sister of the appellant Girdhari was taking out the Hariyali from the field of P.W.1, it was forbidden by the deceased, on account of this enmity, the deceased has been killed.

In cross examination it has been deposed by P.W.2 that the deceased was residing in the house of Mukund Madhav Singh ( P.W.1), he used to sleep there, Mukund Madhav was a renowned singer, for a long back, he used to go to the cities for singing, he was singing in the town Charkhari and Mahoba, in the house of the first informant, his wife, his younger brother and daughter in law and others were residing, his house was at a distance of 7-8 houses to the deceased, the deceased had not committed any fault at the house of the first informant leading to his marpeet, on the day of alleged incident, he had gone to attend the call of nature from his house , he met the first informant first time near the Khalihan , his statement was recorded by the I.O., he did not inquire about his meeting with the first informant near Khalihan that is why it was not disclosed by him, the same was not interrogated by the I.O.at the time of preparation of the site plan, the place of easing of P.W.1 and P.W.2 was at a distance of 30-35 paces from the Khalihan, when he was going to attend the call of nature he did not meet the deceased. He saw the deceased when he was assaulted during the period of easing, he was assaulted by pharsa, by that time he had completed easing and tying the Nara, by that time Mukund Madhav was easing but he was not able to disclose the distance of the place of incident from the place of his presence, after seeing the incident of assault, he ran towards the place of incident, he shouted also , Mukund Madhav P.W.1 also ran towards the place of incident, Mukund Madhav was easing at a distance of 10-15 paces from the place of his easing. He and Mukund Madhav had gone to attend call of nature without having the water in lota, from the place of their easing, at a distance of 2 paces there was water, he saw 2-3 pharsa blows wielded by the appellant, he could not disclose the distance of the place where 3rd blow was used on the person of the deceased, he was not able to disclose the distance of the place where second and 3rd blows were used by the appellant, when he and Mukund Madhav were going to attend the call of nature, they did not meet appellant Girdhari, he saw the appellant Girdhari when he stood up after attending the call of nature, the deceased had gone to attend the call of nature, he had given the statement to I.O. that as usual the deceased had gone to attend the call of nature in the morning to the cremation ground.

The deceased had gone to attend the call of nature. He had given the statement to the Sub Inspector that as usual the deceased had gone to attend the call of nature in the cremation ground. After the commission of the alleged offence, he and the first informant went towards his village. Thereafter, he along with the first informant went to the police station, they had gone to the police station by bicycle. He denied the suggestion that after lodging the FIR he stayed at the police station, he returned back from the police station on the bicycle. but Mukund Madhav had come back to the village in the jeep of the police. He was originally the resident of district Kanpur, at present he was residing in Kuraura Dang, his mother's maika was in village Kuraura Dang. Pratap was his maternal uncle. Mukund Madhav and Pratap belong to different families. He denied the suggestion that he was the Bhanja of the first informant and deposing false evidence, he also denied the suggestion that he had not witnessed the alleged incident.

The deposition of P.W. 3 Ajai Pal shows that on 2.2.1998 he was residing at the village Kuraura Dang, on that date the police of P.S. Charkhari had come to the village, the accused Girdhari was also brought to the village by the police, he and Charan Singh were called by the police. it was told by the police that the accused wanted to disclose the place of Pharsa, the accused in his presence came to the field of Laxmi and from the crop of Alsi and Lahi, he had taken out the Pharsa, which was blood stained,it was handed over by him to the Sub-Inspector, the same was sealed by the Sub Inspector in a cloth, in his presence, recovery memo was prepared by the Sub Inspector, the same was read over to him and his signature was obtained on it, the same was identified by him in the court, the recovery of Pharsa was made at about 1.20 p.m. In the cross examination, it has been deposed by P.W. 3 that he was called by the Sub-Inspector at the field of Laxmi, the field of Laxmi was adjoining, he reached to the field of Laxmi, he saw that the accused Girdhari was sitting in a jeep of the Sub-Inspector, who was standing nearby. He was not asked by the Sub Inspector to disclose his parentage and address, after the recovery of Pharsa, his father's name and address was asked to be disclosed by the Sub- Inspector, in his presence the accused Girdhari taken out the Pharsa, the same was handed over to the Sub-Inspector, at the place of recovery the Pharsa was sealed, he deposed that the first informant Mukund Madhav was not his real cousin, he was belonging to his family, his father Jai Singh, was having the real brothers Gyan Singh, Ram Singh, Moti Lal and Lallu.

He denied the suggestion that in his presence recovery of the Pharsa was not made by the appellant. He also denied the suggestion that he was deposing false evidence.

According to the deposition of P.W.4 S.I. Nasiruddin on 3.1.1998, he was posted at P.S. Charkhari at the post of Senior Sub-Inspector of police, in his presence a case under section 302 I.P.C. was registered against the appellant Girdhari, the investigation of this case was conducted by him, in his hand he copied the chik and nakal rapat in the case diary on 30.1.1998. He and S.I. Verma alongwith police force reached at the place of occurrence, he directed the S.I. R.C. Verma to prepare the inquest report, thereafter, he recorded the statement of Mukund Madhav Singh (First Informant) and the eye witness Kamlesh. He made the spot inspection and prepared the site plan, the same was placed before him, he admitted that it was in his hand writing and signature, the same was prepared, which was marked as Exhibit Ka-2, he collected the blood stained earth and plain earth from the place of occurrence, the same were contained in a different container, both containers were sealed, its memo was prepared, the same was shown to him in the court, he admitted that it was in his hand writing and signature, the same was proved, which was marked as Exhibit Ka-3. He recorded the statement of the witnesses of the inquest on 2.2.1998, he was in search of the accused. He was moving in a jeep alongwith S.I. R.C. Verma, constable Mustafa Khan and constable Shiv Kumar. He got the information through a Mukhbir (informer) that the accused Girdhari was present in his village. He alongwith force reached in village Kuraura Dang at about 12 O'clock in day and arrested the appellant Girdhari at about 12.30 O'clock from a hut. It was disclosed by the accused that Pharsa, by which he committed the murder, was concealed in the field of Laxmi, the same may be recovered. Thereafter, the witness Ajai Pal Singh and Charan Singh were also taken in his company by him and went to the field of Laxmi. The accused taken out the Pharsa from the crops of Lahi and Alsi from the eastern side of the field, the Pharsa was blood stained, which was sealed and its memo was prepared. After writing the same before the witnesses, their signature were obtained, which was in his hand writing and signature, the same was proved, which was marked as Exhibit Ka-4. He prepared the site plan of the recovery in his hand writing and signature, which was proved by him, which was marked as Exhibit Ka-5. Thereafter, he recorded the statement of the witnesses of the recovery in the case diary. He sent the case property to Vigyan Prayogshala for its analysis with the permission of the court. After completing the investigation, he submitted the charge sheet dated 12.2.1998, the same was proved which was marked as Exhibit Ka-6. In his cross examination, he stated that considering the seriousness of the matter, after registering the FIR, he proceeded to the place of incident by writing the first parcha of the case diary at the police station, in preparing the first parcha, he took time of about 30 minutes, he proceeded to the place of incident from the police station in the company of the first informant without having any Hamrahi(companion), at the place of incident, at that time no family member of the deceased was present there. During investigation, the statement of any of the family member of the deceased was not recorded. He inspected the place where the first informant was residing, he recorded the statement of S.I. R.C. Verma who prepared the inquest report, he did not inquire about any description of the injury made by the doctor who conducted the post mortem examination. On the front page of the inquest report. In the site plan, he had shown the place of cremation and pit of water from where the dead body was cremated, he had marked the place as 'B' in the site plan from where the blood stained and plain earth was taken and the same was sealed and its memo was prepared, its description has been made but it could not be marked in the site plan as 'B'. The first informant and the eye witnesses Kamlesh disclosed during the investigation that the had seen the incident from the place 'C' and 'D'. During investigation he did not record the statement of Hamrahi Laxmi Narain, at the time of the preparation of the inquest report, he was present there, from where the dead body was sent for autopsy. After completing the proceeding of inquest, he and S.I. R.C. Verma reported to the police station, at the same time, he denied the suggestion that the papers relating to the inquest were sent for autopsy on the next day. He admitted that the first informant come back to the police station in his company form the place of incident. He denied the suggestion that he registered the FIR after coming back from the place of incident. He came to know during the investigation that the deceased was the servant of the first informant and he was residing at the house, during the investigation it was not informed by any witness that the deceased has gone to the place of the cremation for easing, he was having no knowledge about any hill in the back of the house of the first informant, during investigation he came to know that the deceased has gone for easing prior to the first informant, the alleged place of recovery of the weapon used in the commission of the murder, was at a distance of about 2,1/2 to 3 furlong from the place of the arrest of the accused. He denied the suggestion that the witness of the recovery, namely Ajai Pal Singh was called at the field of Laxmi. He also denied the suggestion that when the witness Ajai Pal Singh met him, the accused Girdhari was sitting in a jeep and he was standing there. He deposed that near the place of the incident, there was only one hand pipe, which was at a distance of about 25 paces from the place of incident and from the place of Babool tree marked as 'A'. The hand pipe was at a distance of about 25 paces. He deposed that in coming from the place of incident to the police station by a bicycle about ½ hour time was consumed. The accused fled towards his house from the place of incident. He admitted that the witness Kamlesh has not stated in his statement recorded under section 161 Cr.P.C. that he and the first informant had gone for easing together. He deposed that in the north side of the hand pipe at long distance, there was a Khalihan that is why it was not shown in the site plan. This witness was recalled for statement and re-examination, in the meantime the sealed bundle was sent to the court on its opening one blood stained Pharsa and two containers, having the plain and blood stained earth, cloths of the deceased were found, the same was proved by this witness, which was marked as Exhibit 1 Pharsa Exhibit-2( Containers having the blood stained and plain earth).

According to the deposition of P.W. 5 Head Constable 18 CP. Maniram Singh, he was posted at police station Charkhari at the police station he was posted as Head Moharrir(H.M.) on 30.1.1998, on that date the first informant Mukund Madhav Singh came to the police station at 8.45 a.m. alongwith a written report, on the basis of that report, he registered the case as case crime no. 17 of 1988 under section 302 I.P.C. against the accused Girdhari, he prepared its chik also. The chik( paper no. 4-Ka) was in his hand writing, having his signature, which was proved and marked as Exhibit Ka-7. Its disclosure was made by him in the the G.D. vide rapat no. 15 at 10.45 a.m. dated 30.1.1998. The carbon copy of the Nakal Rapat was available on the record, which was proved by him, which was marked as Exhibit Ka-8. In cross examination, he deposed that Laxmi Narain son of Jaggannath had also came to the police station alongwith the first informant, no person having the name Kamlesh Kumar came to the police station alongwith the first informant. The first informant left the police station after registering the case, he was having its knowledge, he used to write departure of the first informant from the police station in the G.D. but in the present case by mistake it has not been mentioned in the G.D. The copy of the report was given to the first informant, signature of the first informant was obtained on the first copy. The chick volume is kept in the police station for five years, the entry of handing over the copy to the first informant is made, in the present case, such entry has not been made. He denied the suggestion that he has not given the copy of the Rapat and chik to the first informant immediately, after lodging the FIR. He also denied the suggestion that the FIR was lodged when the I.O. came back to the police station, then its copy was given to the first informant.

According to the deposition of P.W.6 Dr. D.K. Tripathi on 31.1.1998, he was posted at C.H.C. district Mahoba, on that day constable/C.P. 331 Ratiram, C/241 Chatra Prakash brought the dead body of Sri Gulab @ Shiv Yadav in a sealed cover, they identified the body, thereafter, he conducted the post mortem examination, which is as under:

1.I.W. 15 cm.x 2,1/2 cm. x bone deep over left side of zygometico temporal region on 03 cm. lateral to left orbital(upper and lateral) Margin transversely placed 04 cm. above left tragus of ear margin clean cut tailing toward. Posteriorly menthgies and cerebral cortex cut.

2.I.W. 12 cm. x 03 cm x muscle and bone deep over left side of neck 03 cm. lateral to thyroid cartilage left side great vessel's and spinal cord cut between 3rd and 4th cervical vertebra. Margin clean cut tailing towards posteriorly.

3.I.W. 10 cm. 02,1/2 cm. left side of root of neck 04,1/2 c.m. below injury No. third transversely placed muscle deep margin clean cut tailing posteriorly.

4.I.W. 05 cm.x 03 cm. x bone deep over upper and posteriorly left shoulder 01 cm. behind left acrimio clavicular joint superior border of scapula left cut transversely placed tailing to left lateral side. Margin clean cut.

On external examination, it was found that it was the dead body of a young person average built muscular, rigor mortis was present over upper and lower limb, no sign of decomposition was present. On external examination, head, neck brain or membrane were cut as mentioned in the ante mortem injury like this; vertebra, spinal cord, were cut, which has been shown in the ante mortem injuries, both the lungs were congested, stomach was empty, small intestine and large intestine were having gases and faecal matter, liver, pancreas spleen, kidneys were congested. Urinary bladder was empty. The cause of death was shock and haemorrhage due to ante mortem injuries.

The post mortem examination was jointly done by him and Dr. R.N. Singh but the post mortem examination report was prepared by him, it was bearing his and Dr. R.N. Singh's signatures. The post mortem examination report was proved by him and the same was marked as exhibit Ka-9. There was possibility of occurring the death on 30.1.1998 at 7.30 A.M., all the ante mortem injuries may be caused by sharp edge weapon like Farsa. For autopsy all the police papers (enclosures) were received on 31.1.1998 at about 9.00 A.M. The sealed body was received by him on 31.1.1998 at 2.30 P.M. The rigor mortis remains present for 12 to 18 hours in summer and in winter it remains for 24 to 48 years. All the four wounds may be caused by separate blows. All the wounds were incised. In any case it may not be caused in three place. Fourth incised wound was having the dimension of 5x3 c.m. In reply of the query made by the court he deposed that all the injuries may be caused by one sharp edge weapon. All the four injuries were bone deep but the depth of all the injuries were not same. All the injuries were having different depth. He did not record the depth of the injuries in the post mortem examination report. All the injuries may be caused by half curved sharp edge weapon. For completing the examination there was need of senior doctor, it was required to reduce the political pressure also because there was possibility of political pressure but no political pressure was exercised. He denied the suggestion that the length, width and depth of injury No. 4 was lessor than other injuries. He denied the suggestion that injuries were caused by different weapons. He denied the suggestion that prior conducting the post mortem examination report he had read the FIR. He denied the suggestion that on account of reading the FIR and to verify the fact that all the injuries would have been caused by the same weapon, he took the assistance of senior doctor. The duration of death was about one day old. It was very difficult to give the opinion that how much time before the death the deceased had gone for easing on the basis of contents of small and large intestine.

According to the deposition of P.W. 7 S.I. R.C. Verma, who was posted at the post of S.I. at P.S. Charkhari on 30.1.1998, he completed the proceedings of inquest of the death body of Gulab @ Shiv Yadav at the place of the incident on 30.1.1998. The proceedings of the inquest were commenced in the presence of the witnesses. The dead body was sent in a cloth cover, namuna mohar was also prepared. Letter to R.I., letter to C.M.O., photonash, Challan nash were also prepared by him and the dead body was handed over to constable Satya Prakash, constable Ratiram for autopsy. The inquest report was in hand writing, it was having signature. It has been proved and marked as Annexure Ka-10. Letter to R.I., letter to C.M.O., photonash, challan nash in his hand writing having his signature, the same was proved and marked as exhibit Ka-11 to Ka-14. On cross examination he deposed that he was not I.O. of this case, his rawanagi from the police station to place of the incident was mentioned in Nakal Rapat No. 15 about 10.45 A.M. dated 30.1.1998. Sri Nasiruddin the I.O. of this case had also gone in his company from police station to the place of the incident. Prior to that S.S.I. Nasiruddin had not done any written work at the police station. At the time of the departure from the police station to the place of the incident the first informant was also in their company. He was having no knowledge about any hamrah, at the time of inquest proceedings S.S.I. Nasiruddin and the first informant was not appeared there. He handed over all the papers to the police constables who were appeared at the time of the inquest proceedings. After post mortem examination report all such papers were sent to the police station. He clarified that both injuries No. 1 and 2 were incised wounds. He had not seen the post mortem examination report. He denied the suggestion that there is only two injuries at the time of preparation of the inquest report. He denied the suggestion that injury No. 3 was added in inquest report subsequently after perusing the post mortem examination report. According to him both injuries were simple that is why the reference of both the injuries were given in injury No. 3 in the inquest report. He denied that the dead body was sent through tractor from the place of the incident at about 1.00 P.M. The tractor takes time of about two or three hours in covering the distance of Mahoba from the place of the occurrence. He denied the suggestion that after completing the proceedings of inquest the first informant and S.S.I. Nasiruddin came back to police station in his company. He denied the suggestion that proceedings of the inquest were completed by him at the police station. He also denied the suggestion that the proceedings of the inquest were not completed according to the rules. According to the statement of the appellant Giridhari recorded under section 313 Cr.P.C. his reply was either in negative or has shown ignorance about the facts of the case. In respect of his arrest he replied that he was arrested from his house and challaned. He had not shown any reason of his false implication and he had chosen not to adduce any evidence in defence.

After appreciating the evidence available on the record, the findings of the conviction by convicting the appellant for the offence punishable under section 302 IPC and sentencing him for the life imprisonment vide judgement and order dated 22.2.1999.

It is contended by Lal Ji Chaudhari, Amicus Curiae appointed for the appellant that the presence of the first informant P.W.1 Mukund Madhav Singh and P.W.2 Kamlesh Kumar at the alleged place of the incident was highly doubtful. The deceased was killed in a lonely place, the alleged incident could not be witnessed by any person or the alleged incident has occurred in some other manner, the first informant has tried to conceal real fact, the appellant, who was having no motive and intention to commit the murder of the deceased, has been falsely implicated due to wrong fact given by first informant so that real fact may not be revealed from the circumstances. The FIR of this case is ante timed, it has been lodged after great thought and consultation, it was not in existence at the time of preparation of the inquest report. In site plan, the place 'B' where according to description made in the site plan, the blood found, has not been shown. The description given by the witnesses show that they have not witnessed the alleged incident. The motive attributed by prosecution that sister of the appellant Girdhari was uprooting the greenery, it was forbidden by the deceased on which some altercation has taken place has not been fully proved. The recovery of the Pharsa allegedly used in commission of the alleged offence has been planted by the I.O. Even according to the report of Public Analyst blood of Pharsa could not be classified because it was disintegrated, the appellant was not arrested as alleged by the I.O., in fact he was arrested from his house and thereafter recovery was planted. In case the evidence adduced against the appellant is relied upon, even then no offence under section 302 I.P.C.is made out, at the most the offence punishable under section 304 I.P.C. may be constituted. The appellant is in jail since 2.2.1998, he has remained in jail for a period of more than 15 years, in case he is convicted, he may be sentenced to the period already undergone.

The above submissions made by counsel for the appellant have been controverted.

To consider the submissions made by counsel for the appellant and from the appreciation of the evidence adduced it appears that the first informant Mukund Madhav Singh P.W.1 is admittedly Master of the deceased, the deceased was his servant, in such a circumstance, the testimony of P.W.1 Mukund Madhav Singh requires strict scrutiny.

The P.W.1 lodged the FIR at police station Charkhari on 30.1.1998 at 10.45 A.M. in respect of the incident allegedly occurred on 30.1.1998 at about 7.30 A.M., the distance of the police station was about 6 kms.from the place of incident, the alleged incident has taken place near the field of Serman Gareriya outside the village Abadi, P.W.1 and P.W.2 witnessed the alleged incident from the cremation ground where they were easing. P.W.1 categorically stated in FIR, in the statement recorded under section 161 Cr.P.C.and before the trial court that the appellant was armed with Pharsa, he caused injuries by using the pharsa blows. After seeing the alleged incident, he shouted and ran towards the place of incident but the appellant fled away towards the village, he came to the place of incident and saw the deceased, by that time he had died , one day prior to the alleged incident the greenery and crop from his field was digging out by the sister of the appellant, the deceased was grazing animals there who came and asked not to do so, on this account, there had been altercation between the deceased and the appellant due to this enmity, the deceased was killed by the appellant. He went to the police station and lodged the FIR, the Sub Inspector came to the place of incident, he made spot inspection, he had gone to the police station to lodge the FIR in the company of P.W.2 Kamlesh, after lodging the FIR he came to place of incident along with Sub Inspector in Police Jeep. The P.W.2 Kamlesh came back from the police station on his bicycle, he proved the FIR which has been marked as Exhibit Ka-1, the proceedings of the inquest were completed in his presence, thereafter the dead body of the deceased was sent to Mahoba, the family members of the deceased were residing in another village Ram Nagar, Charkhari before sending the dead body to Mahoba, the family members of the deceased were called. He again went to the police station Charkhari in his presence, two constables having relevant papers were sent by the Sub Inspector for autopsy of the dead body. He clarified that he could not mention the fact that the sister of the appellant was uprooting the greenery along with crop from his field. Over this issue, there had been a Panchayat in the village, he denied the suggestion that in the Panchayat the deceased was found guilty and scolded by him. By putting this suggestion it appears that there had been Panchayat over this issue. It has come in evidence that deceased was serving at his house for the last two years and he was residing in a separate room at his house. According to the testimony he was a chance witness also, he categorically stated that he had seen two-three blows but he was not counting the blows, on using the first blow he stood up by tying the Nara in a running condition, using of second blow and 3rd blow were seen by him when he was in running condition. The second and 3rd blows were used by the appellant when the deceased fell down, he denied the suggestion that he was deposing the evidence against the appellant because he was opposed by appellant in the election of the village Pradhan. The deposition of P.W.1 is supported by the post mortem examination report. The deceased has sustained four incised wounds and it has come in the testimony of P.W.6 Dr. D.K.Tripathi, who conducted the post mortem examination report, that all the injuries may be caused by one sharp edged weapon as Pharsa. There is no material inconsistency in the testimony of P.W.1. He lodged the FIR promptly. It is a day light incident, the stomach of the deceased was empty, the small and large intestines having gases and faecal matter, it has been deposed by P.W.1 that at the time of alleged incident, the deceased was returning after attending the call of nature. According to this testimony the deceased was not seen by him at the time of easing. On the basis of presence of gases and faecal matter in small and large intestines of the deceased no adverse inference may be drawn that he might have gone to attend the call of nature but the complete easing was not necessary. There is no material inconsistency in the testimony of P.W.1 to disbelieve his presence at the place of incident and there is no material inconsistency or circumstance to disbelieve the P.W.1. The testimony of P.W.1 is reliable, the trial court has not committed any error in believing the testimony of P.W.1.

To appreciate the testimony of P.W.2 Kamlesh Kumar, strict scrutiny is required because he was also a chance witness and belonging to the family of P.W.1, on close scrutiny, it appears that the alleged incident has taken place at about 7.30 A.M. P.W.1 Mukund Madhav Singh was Pradhan of his village, the deceased was servant of P.W.1. On the day of the alleged incident the deceased has gone to attend the call of nature in cremation ground, when the deceased came near the field of Sarman after attending the call of nature, he was assaulted by appellant Girdhari by pharsa, consequently he fell down, on his falling down, the appellant repeated pharsa blows in causing the injuries, on his shouting, he and Mukund Madhav Singh came there in running condition then the appellant having the pharsa fled away towards the village, Gulab had died on the spot, one day prior to the alleged incident there had been some altercation with the deceased and sister of the appellant Giridhari because the sister of the appellant was uprooting the hariyali from the field of Pradhan Mukund Madhav Singh, she was asked by the deceased not to do so, on account of this enmity, the deceased has been killed. According to his deposition also, the deceased was working at the house of Mukund Madhav Singh, he was residing in the house of Mukund Madhav Singh. Mukund Madhav Singh was a singer, who used to attend the programme of singing outside the village also. In cross examination he clearly stated that he had not committed any mistake at the house of first informant leading to his marpeet. He categorically stated that when he and Mukund Madhav Singh were going for easing, the appellant did not meet them, he did not see the deceased when he was attending the call of nature. He was not in a position to say whether the deceased had gone to attend the call of nature before or after his easing. He admitted that he had gone in the company of the first informant to the police station, he also admitted that he and first informant had gone to police station on bicycle and he returned from the police station on bicycle and Mukund Madhav Singh had returned from the police station to village on Police Jeep. He was resident of district Kanpur but he was residing in village Kurauna Dang, his mother's maika was in village Kurauna dang. Pratap was his maternal uncle. Pratap and Mukund Madhav Singh belonged to different family. His testimony has also been supported by statement of P.W.1 There is no material inconsistency in his testimony and there is no reason to disbelieve his presence at the place of incident and there is no reason for not believing his testimony. In such circumstance, the testimony of P.W.2 Kamlesh is also reliable. The trial court has not committed any error in believing the testimony of P.W.2.

The recovery of Pharsa has been made by the appellant in presence of P.W.3 Ajai Pal. He is independent witness. His testimony with regard to recovery of Pharsa made by the appellant is having no inconsistency, his statement has been corroborated by P.W.4 S.I. Nasir Uddin. He is also a reliable witness.The trial court has not committed any error in believing the testimony of P.W.3 Ajay Pal.

P.W.4 S.I.Nasir Uddin is I.O.of this case. After completing the investigation, he submitted the charge sheet , he arrested the appellant , the appellant made recovery of Pharsa from the crop of the field belonging to Lakshmi. The recovery memo has been proved by him, which has been marked as Exhibit Ka-4. In cross examination also, no material inconsistency in his testimony was found. His testimony with regard to recovery of Pharsa by the appellant has been corroborated by P.W.3 The trial court has not committed any error in relying upon the testimony of P.W.4.

P.W.5, Head constable Mani Ram is a formal witness, who proved the chick FIR and G.D.which have been marked as Exhibits Ka-7 and 8. ,no material inconsistency has been found in the testimony of P.W.5 to show that FIR of this case is ante timed.

The testimony of P.W.6 Dr.D.K.Tripathi, who proved the post mortem examination report which has been marked as Ka- 9 reveals that he conducted the post mortem examination report on the dead body of the deceased on 31.1.1998, the dead body was brought by Constables Rati Ram and Satya Prakash in sealed condition, the dead body was identified by them. He found rigor mortis in both the upper and lower limbs, no sign of decomposition was found by him, according to him the deceased has sustained four incised wounds, it might have occurred on 30.1.1998 at 7.30 A.M.and all the injuries were possible to be caused by one sharp edged weapon as Pharsa. He had received police papers on 31.1.1997 at 9.00 A.M. His testimony is corroborated with the FIR version. There was no material inconsistency in his testimony to establish that the alleged occurrence has not taken place as alleged by the prosecution.

The testimony of P.W.7 S.S.I. R.C.Verma is formal in nature, he completed the proceedings of inquest prepared the inquest report, challan nash, photo nash etc., the same documents have been proved by him which were Exhibits Ka- 10 to Ka 14. There was no material inconsistency in his testimony to draw inference that the FIR was ante timed or the proceedings of the inquest has not been completed in accordance with law. It is a case in which motive has also been attributed, one day prior to the alleged incident, there had been altercation between the deceased and the appellant over digging out the greenery along with the crop by the sister of the appellant from the field of the P.W.1 which was protested by the deceased. It has been categorically stated by P.W.1 that there had been Panchayat in the village over the issue and denied the suggestion that in Panchayat the deceased was found guilty and scolded by him,by this suggestion, it appears that there was dispute on which a Panchayat was arranged, the motive is also established.

The prosecution has successfully proved its case against the appellant beyond the shadows of doubt. The trial court has not committed any error in recording the finding of conviction, now we are evaluating the evidence available on record, to determine the nature offence; whether the appellant has committed the offence of murder punishable under section 302 I.P.C. or culpable homicide not amounting to murder punishable under section 304 I.P.C. or if the offence of culpable homicide is committed, if comes under purview of part II of 304 I.P.C. and the appellant may be sentenced to the period already undergone because he is in jail since 2.2.1998, he has remained in Jail for a period more than 15 years.

Sections 299 and 300 I.P.C. read as under :

299. Culpable homicide.--Whoever causes death by doing an act

with the intention of causing death, or with the intention of causing

such bodily injury as is likely to cause death, or with the knowledge

that he is likely by such act to cause death, commits the offence of

culpable homicide.

Explanation 1.-A person who causes bodily injury to another who

is labouring under a disorder, disease or bodily infirmity, and

thereby accelerates the death of that other, shall be deemed to have

caused his death.

Explanation 2.-Where death is caused by bodily injury, the person

who causes such bodily injury shall be deemed to have caused the

death, although by resorting to proper remedies and skilful treatment

the death might have been prevented.

Explanation 3.-The causing of the death of a child in the

mother's womb is not homicide. But it may amount to culpable homicide

to cause the death of a living child, if any part of that child has

been brought forth, though the child may not have breathed or been

completely born.

300.

Murder.

300. Murder.--Except in the cases hereinafter excepted, culpable

homicide is murder, if the act by which the death is caused is done

with the intention of causing death, or-

2ndly.-If it is done with the intention of causing such bodily

injury as the offender knows to be likely to cause the death of the

person to whom the harm is caused. or-

3rdly.-If it is done with the intention of causing bodily injury

to any person and the bodily injury intended to be inflicted is

sufficient in the ordinary course of nature to cause death, or-

4thly.-If the person committing the act knows that it is so

imminently dangerous that it must, in all probability, cause death, or

such bodily injury as is likely to cause death, and commits such act

without any excuse for incurring the risk of causing death or such

injury as aforesaid.

Exception 1.-When culpable homicide is not murder.-Culpable

homicide is not murder if the offender, whilst deprived of the power

of self-control by grave and sudden provocation, causes the death of

the person who gave the provocation or causes the death of any other

person by mistake or accident.

The above exception is subject to the following provisos:-

First.-That the provocation is not sought or voluntarily provoked

by the offender as an excuse for killing or doing harm to any person.

Secondly.-That the provocation is not given by anything done in

obedience to the law, or by a public servant in the lawful exercise of

the powers of such public servant.

Thirdly.-That the provocation is not given by anything done in

the lawful exercise of the right of private defence.

Explanation.-Whether the provocation was grave and sudden enough

to prevent the offence from amounting to murder is a question of fact.

Exception 2.-Culpable homicide is not murder if the offender in

the exercise in good faith of the right of private defence or person

or property, exceeds the power given to him by law and causes the

death of the person against whom he is exercising such right of

defence without premeditation, and without any intention of doing more

harm than is necessary for the purpose of such defence.

Exception 3.-Culpable homicide is not murder if the offender,

being a public servant or aiding a public servant acting for the

advancement of public justice, exceeds the powers given to him by law,

and causes death by doing an act which he, in good faith, believes to

be lawful and necessary for the due discharge of his duty as such

public servant and without ill-will towards the person whose death is

caused.

Exception 4.-Culpable homicide is not murder if it is committed

without premeditation in a sudden fight in the heat of passion upon a

sudden quarrel and without the offender's having taken undue advantage

or acted in a cruel or unusual manner.

Explanation.-It is immaterial in such cases which party offers

the provocation or commits the first assault.

Exception 5.-Culpable homicide is not murder when the person

whose death is caused, being above the age of eighteen years, suffers

death or takes the risk of death with his own consent.

In reference of the above mentioned ingredients, the available on record reveals that appellant committed the murder of the deceased on 30.1.1998 at about 7.30 A.M. by using the pharsa blows, according to the post mortem examination report, the deceased had sustained four ante mortem incised wounds and according to the testimony of P.W.6 Dr. D.K.Tripathi, who conducted the post mortem examination, all the injuries may be caused by different blows of a pharsa and in any case all the four wounds may not be caused by 3 blows of pharsa, the eye witness P.W. 1 and P.W. 2 have also deposed that the appellant caused the injury by repeating pharsa blows. it establishes that the appellant caused the injuries to the deceased by repeating pharsa blows, the injury nos. 1, 2 and 3 were on the vital part of the body, on account of injuries caused, the vital organs of the body were also damaged as membranes, brain, vertebrae and spinal cord were cut, right and left lungs lacerated, left side neck, great vessel cut, liver, pancreas, spleen and kidney were congested, it shows that the appellant caused injuries to the deceased with the intention of causing the death and caused the bodily injuries having the knowledge that it was likely to cause death, the appellant was having the motive also, the act done by appellant is not covering any exception of section 300 I.P.C.. In such circumstances, the trial court has not committed any error in convicting the appellant for the offence punishable under section 302 I.P.C. because in any case the evidence adduced does not permit to convict the appellant under section 304 I.P.C.(culpable homicide not amounting to murder) such submission is not having any substance.

In view of the above discussions, we affirm the judgement and order dated 22.2.1999 passed by learned Sessions Judge,Mahoba in S.T.No. 122 of 1998 convicting the appellant under section 302 I.P.C. and sentencing him to undergo imprisonment for life. The prayer to quash the impugned judgement and order dated 22.2.1999 is hereby refused. The appellant is in jail, he shall serve the sentence as awarded by the trial court.

Accordingly, this appeal is dismissed.

Dated : 11.4.2014

NA/Su/RPD